Senate Ends Its Term With 72 Bush Judicial Nominees Affirmed

The Senate quit for the year Wednesday having confirmed 72 new judges appointed by President Bush, the best one-year record since 1994 for White House judicial nominees.

However, the president’s advisors were disappointed because nearly half of Bush’s selections to the U.S. appeals courts were blocked by the Democratic-controlled Senate.

“This is very troubling and unprecedented,” said Viet Dinh, an assistant attorney general who heads the office that screens nominations. “All we wanted was an up-or-down vote on them.”

But the Democrats said the late rush of Senate confirmations shows that the president’s nominees fared reasonably well.

“The vitriolic rhetoric [aside], ... the reality is that we have approved far more judicial nominees for this president than past Senates did for other presidents,” said Sen. Patrick J. Leahy (D-Vt.), the outgoing chairman of the Judiciary Committee.

The year’s fierce ideological clash over judges ended in a battle over statistics.

In all, Bush had 100 judges confirmed in the two years of the 107th Congress. Of these, 83 will serve as trial judges on federal district courts, while 17 will join the regional U.S. Circuit Courts of Appeals.

Leahy contrasted that record with the six previous years, when Democrat Bill Clinton was president and the Republicans controlled the Senate.

Clinton won confirmation of 73 judges in the 104th Congress of 1995-96; 98 judges in the 105th Congress of 1997-98; and 72 judges in the 106th Congress of 1999-2000.

Leahy also said there were 110 vacancies on the federal courts when the Democrats took control of the Senate in July 2001 and only 60 today, far fewer than most of the years Clinton was in the White House.

But Senate Republicans and the president’s aides said these comparisons are misleading.

Most new presidents win easy confirmation of nearly all their first nominees to the federal bench. And no president has had as many of his appeals court nominees blocked, they said.

In his first two years in office, Clinton had a Democratic majority in the Senate and won confirmation of 126 judges, including 19 of 22 nominees to the appellate courts.

Both parties focus more attention on the appeals courts because those judges can set the law for their regions.

In May 2001, Bush announced his first 11 appellate court nominees. Nine were conservatives with solid credentials; two were black Democrats who were first nominated by Clinton. Soon after, Bush nominated Los Angeles Superior Court Judge Carolyn Kuhl to the U.S. 9th Circuit Court of Appeals.

Leahy and the Democrats moved quickly to confirm the two Democrats, but then confirmed only three of the remaining nominees. Most of Bush’s other appeals court nominees, including Kuhl, have had neither a hearing nor a vote.

Bush made 130 judicial nominations in his first two years. Seventy-six percent won confirmation, administration lawyers said, well below the 90% rates for past presidents. And only 53% of Bush’s appeals court nominees were confirmed, they said.

However, Bush is expected to renominate all of the prospective judges early next year. They will come before a Judiciary Committee with a GOP majority.

Conservative activists said the liberal attacks on Bush’s nominees backfired on the Democrats.

“We have seen the process get more and more acrimonious. They injected the ideological litmus test and labeled people as extremists,” said John Nowacki, director of legal policy at the Free Congress Foundation, a conservative think tank in Washington. “But this got conservatives riled up. In reality, most people are comfortable with the kind of nominees [Bush] was putting forward.”

The senior Republican on the Judiciary Committee agreed that the midterm elections were, in part, a referendum on the partisan battle over judges.

“As far as I see it, the president took three issues to the American people: his Iraq policy, homeland security and his judicial nominees,” Sen. Orrin G. Hatch (R-Utah) said Tuesday on the Senate floor. “The election showed that Americans trust this president, including his selection of judicial nominees.”

Hatch promised speedier action next year. “The voters have rejected obstruction,” he said.

Liberal activists conceded that they will have a hard time stopping even the most conservative of Bush’s nominees.

“There will be a steamroller effect from the election,” said Kate Michelman, president of the National Abortion and Reproductive Rights Action League. “There will a rush to move the courts further to the right. And so far it doesn’t seem like most Americans are awake to the loss of freedoms on the horizon.”